The Priority of Justice-as-Fairness

We need rules for living together, we cantankerous human beings: this is one premise governing John Rawls’ A Theory of Justice, and one that governs social contract theory in general. As chaos is the point of departure for creation myths, so conflict has been for political theory. We need rules to establish peace and order and stability. Just as “theword” makes existence possible, and conceptual categories (causality and the rest) make experience possible, rules are (to put it in Kantian language) the conditions for the possibility of a society.

The question is then what these rules are to be. We might appeal to a variety of different standards when determining them, only one of which is “justice.” Other possibilities include, for instance “the word of God.” But the point of Rawls’ book is not to argue directly for justice over these competing possibilities. When he tells us that justice “is the first virtue of social institutions,” he is asking us to assume with him that it is the correct standard for ordering a society. He also asks us to assume from the outset that justice is a particular sort of thing: that it involves at its core, concepts of fairness (premised on human equality) and liberty (with attendant rights), and is a means to the fair allocation of goods within a society (that is, “distributive justice”). Rawls calls this “justice as fairness.”

Once we assume that we need rules for living together and that our standard for choosing them is justice-as-fairness, we can then move on to Rawls’ “original position” and “veil of ignorance”: these are thought experiments meant to force us into the position of fair-mindedness. They lend themselves to the concept of fairness because they require us to give up our biases: in the “veil of ignorance,” those deciding on the rules that will govern a society know nothing about their class, social status, natural abilities, psychological propensities, or conception of the good. What they do know is something they have in common with everyone else – their “essential goods” or “basic needs,” along with general facts about the world. In such a position we are forced – even as self-interested parties – to choose what’s fair, maximizing as much as possible the prospects of the least well off, just in case we are one of them.

One criticism of the veil of ignorance we gave voice to in our recent episode on Rawls – one often associated with communitarians such as Michael J. Sandel – is the notion that it leaves us in too weak a position to make a genuine, rational decision about how a society should be ordered; that the deliberators in this position are implausibly abstract, and devoid of the communal identity required to make a meaningful choice. Does this objection work? I doubt it: clearly human beings have a capacity for fair-mindedness, and fair-mindedness must transcend particular fealties and biases in just the way that Rawls describes.

This objection is better framed as a challenge to the notion that justice-as-fairness is the proper principle for ordering a society in the first place, as opposed to some other shared conception of the good, such as religion. Liberalism and theocracy are two competing notions of how to set up a polity. This is not to say that a theocracy can’t incorporate principles of justice-as-fairness (and even some level religious tolerance), as long as they are subordinate to more fundamental theocratic principles; nor is it to say that the theocrat won’t identify religious principles with a sort of “justice” that is broader than justice-as-fairness as we have defined it.

We might try to argue the theocrat off their position by appealing to their self-interest. We might point out that historical shifts of power are just as likely to endanger a particular religion as enthrone it, making the pluralistic society that results from the application of justice-as-fairness a safer bet than theocracy for ensuring the unfettered practice of religion, even if it deprives one’s preferred religion (or another conception of the good) of the political power it might have under certain circumstances.

But this sort of argument is unlikely to produce agreement, and it is one you must have before you enter the original position’s very special, amnesia-inducing conference room. Many theocrats would see the risk of being a religious minority as worth the possibility of seeing state sanction of the one true religion. There’d be little point in conducting the Rawlsian thought experiment without assuming from the beginning the standard of justice-as-fairness, because it is the one standard that can incorporate and tolerate other, conflicting conceptions of the good within its framework. Absent justice-as-fairness, can we think of some means of reconciling two theocrats with differing religions? If the goal is, as we’ve assumed, to move from primordial conflict to order, then justice-as-fairness has something to recommend it from the beginning after all. This is to say that, as I hinted at the outset with talk of “conditions for the possibility,” there might be transcendental arguments to be made for liberalism, just as there are transcendental arguments to be made for the law of non-contradiction and categories of experience. Assuming that non-contradiction, coherent (and especially scientific) experience, and lack of conflict are what we really want.

Comments

Wes—I think this is your argument:
Since theocrats and others would argue for the primacy of their own position, they would be against fair mindedness and thus against justice

Therefore “there might be transcendental arguments to be made for liberalism, just as there are transcendental arguments to be made for the law of non-contradiction and categories of experience. Assuming that non-contradiction, coherent (and especially scientific) experience, and lack of conflict are what we really want.”

I agree with you pragmatically, that you can’t get justice from a dogmatist. But you are suggesting that because Kant came up with the transcendental ideal (including non-contradiction, categories of experience, that his transcendental idealism actually provides the conditions for the possibility of justice, or is a least a good appeal.

As you know, Kant came up with the categorical imperative based on his system of the Critique of Practical Reason, which turns justice and all morality into disinterested duty. We must derive no personal satisfaction from our choice of the good. Duty must be an end in itself, what we would will universally for all, and must be obeyed in all, and by all, situations and circumstances. A categorical imperative is an unconditional obligation; that is, it has the force of an obligation regardless of our will or desires. If an action is not done with the motive of duty, then it is without moral value.

Kafka’s “The Trial” is a demonstration of the agonistic nature the Law of the categorical imperative versus human capability. In “The Trial,” Josef K. is arrested and prosecuted by a remote, inaccessible authority (the Law), with the nature of his crime revealed to neither him nor the reader. Since duty is a rationally abstract construct of perfection, the more one tries to enact duty, the more impossible the perfect duty becomes with an ever receding horizon of possibility (Hell). Nor is there ever certainty of having achieved one’s duty due to the ever transcendent nature of duty.

While I am in agreement that we need to appeal to the reason of fair-mindedness, I believe that Kant’s transcendental idealism and those who hold to the transcendental lead necessarily to their own form of intellectual dogmatism, and thus injustice, especially when applied to ethics.

I’m not advocating a position. I just think that it’s interesting that there are hints of a transcendental argument in the notion of justice-as-fairness.

Also — Kant’s morality is a pretty complex case. He’s well aware of theories of moral sentiments. What’s most interesting to me about Kant’s morality is the idea that morality has a transcendental ground. And Kant’s transcendental ground is this: for there to be such a thing as morality at all, we need to be able to will something. Being able to will something requires that we will something that is not self-undermining (otherwise we’re not really “willing,” properly speaking). And for Kant, all morality flows from what we can coherently will. That’s a truly amazing, fascinating idea, regardless of where you come down on these issues in the end. Arguably no transcendental arguments work. But they are a truly admirable attempt to pull rabbits from hats, and something akin to creation myths: that is, the foundation of every transcendental argument is that something comes from nothing (where “nothing” includes a creation-inspiring contradiction). The form of the argument is a particular kind of reductio ad absurdum: -p –> p. (Descartes’ cogito is, incidentally, a similar sort of argument, prefigured by St. Augustine: “I err therefore I am”). So whatever one’s critiques of Kantian morality or transcendental arguments in general, they remain really interesting for a variety of reasons. The goal of this post is to point you to the fact that while Rawls asks us to assume justice-as-fairness for the sake of his argument, there are very interesting reasons beyond our intuitions to think that fairness is important.

” ‘It looks,’ said I, ‘as if Simonides was talking about what is right with a poet’s ambiguity. For it appears that he meant that it is right to give everyone what is appropriate to him, but he called this his due‘ ”

Wes:
If we stay within the bounds of “as we exist” as our appeal to epistemology, we can avoid false beliefs and keep true to our natural energies. The problem with the cognitive aspects of transcendence in Kant are that he appeals to active cognitive processes as having epistemic power, and that by the “knowledge” gained in just being rational, we therefore have privileged knowledge of what “is” rational. (It’s all in the copula.) Continuing this on to the ethical domain, because we have rationality, we thus have the capacity and duty to live rationally, according to the categorical imperative, and we are to restrict our lives according to this formulation.

As you said, not only is Kant’s formulation of the transcendental complex, but so are his ethics, which are not based on the transcendental deductive alone.

In fact, one of Kant’s invaluable ideas is the distinction of the noumena (that is more related to the transcendental) from the phenomena (more related to the immanent, existential, apparent). While I think Kant makes the error of declaring that we have more knowledge than we have, based on cognition (transcendal idealism), a shift from the active syntheses of cognition to the passive syntheses (the immanent) of experience yield a solution to his idealistic, cognitive biasing that enables preserving much of his project.

The transcendental as presented by Kant makes immanence/existence subservient, is epistimically erroneous and results in establishing false blocks to the flow of life, especially ethically.

Finally, I think you may have been using transcendental in the sense of conditions necessary for something to exist, i.e., conditions necessary for justice to exist such as fairness. I would add that I think there is a deeper construct (which would be immanent) which leads to fairness and justice but that is for another time.

“If we stay within the bounds of “as we exist” as our appeal to epistemology, we can avoid false beliefs and keep true to our natural energies” what are our natural energies (are there unnatural energies?), how would one go about staying within the bounds of “as we exist” ( as opposed to what how we don’t exist?) and how does this all help us to avoid false beliefs?

Thanks for the post Wes! Fairness has been a recent topical interest of mine ever since and friend of mine and I held a little impromptu debate on whether or not life is “fair,” of which Mr. Lindsenmeyer squelched when I raised the question on PEL’s Facebook group (great response: “Life is neither fair nor unfair. Life just is.”) Nice to see another posting on the topic. Keep up the “avuncular” work!

If we start with your last question first, it is my contention that Kant’s transcendental deductive is a false explication of epistemology in that it privileges cognition, intellect, rationality as a superpower embedded in our thinking alone (the transcendental) at the expense of our existentiality, our experientiality, our humanity, our naturality (the immanent). By keeping appropriate priority of our whole humanity, the rational and the experiential together, we can stay within the bounds of how we exist without the false beliefs of the transcendental and categorical imperative policeman making us shrink back from our natural energies and the flow of life.

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